Barker v. All Roofs by Dominic ( 2021 )

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BARKER v. ALL ROOFS BY DOMINIC—DISSENT
ROBINSON, C. J., with whom KAHN and ELGO, Js.,
join, dissenting. I respectfully disagree with the majori-
ty’s conclusion that, under General Statutes § 31-291,1
the defendant city of Bridgeport (city)2 was the ‘‘princi-
pal employer’’ liable to pay benefits under the Workers’
Compensation Act (act), General Statutes § 31-275 et
seq., to the plaintiff, Christopher Barker, an employee
of an uninsured roofing subcontractor who was injured
while repairing the roof of the city’s municipal waste
transfer facility. I agree with the majority’s threshold
conclusions that (1) this court’s decision in Massolini
v. Driscoll, 114 Conn. 546, 159 A. 480 (1932), remains
good law for the proposition that a municipality can be
a principal employer under the act, and (2) the vitality
of Massolini has not been affected by subsequent devel-
opments in workers’ compensation law, including the
1959 expansion of the coverage responsibilities of the
Second Injury Fund (fund). See Public Acts 1959, No.
580, § 13. I nevertheless part company with the majori-
ty’s application of Massolini and its progeny to affirm
the judgment of the Appellate Court affirming the deci-
sion of the Compensation Review Board (board). See
Barker v. All Roofs by Dominic, 183 Conn. App. 612,
623, 193 A.3d 693 (2018). Specifically, I disagree with
the majority’s reliance on a municipality’s statutory
power to ‘‘[e]stablish, lay out, construct, reconstruct,
alter, maintain, repair, control and operate . . . gar-
bage and refuse disposal facilities . . . and any and
all buildings or facilities necessary or convenient for
carrying on the government of the municipality’’; Gen-
eral Statutes § 7-148 (c) (6) (A) (i); to conclude that
the city is in the ‘‘business’’ of repairing the roofs of
municipal buildings. I believe that an unduly heavy
focus on municipalities’ broad statutory powers under
§ 7-148 (c) poses the risk of rendering them the guaran-
tor of the workers’ compensation obligations of any
private contractor that they engage, even in cases in
which the municipality has historically chosen not to
engage in that contractor’s business. Instead, I conclude
that the city was not in the business of roofing because
it had continuously outsourced that trade to the private
sector, it did not have a roofer on its payroll, and there
was no evidence that its employees had worked along-
side the plaintiff on the transfer station roof project.
Accordingly, I respectfully dissent.
I begin by noting my agreement with the majority’s
statement of the background facts, procedural history,
and standard of review. See, e.g., Graham v. Olson
Wood Associates, Inc., 323 Conn. 720, 731–32, 150 A.3d
1123 (2016). I also agree with the majority’s view of the
law in this area generally, namely, that the ‘‘purpose of
the act is to provide compensation for injuries arising
out of and in the course of employment, regardless of
fault. . . . Under the statute, the employee surrenders
his right to bring a [common-law] action against the
employer, thereby limiting the employer’s liability to
the statutory amount. . . . In return, the employee is
compensated for his or her losses without having to
prove liability.’’ (Internal quotation marks omitted.)
Gonzalez v. O & G Industries, Inc., 322 Conn. 291, 304,
140 A.3d 950 (2016).
‘‘The first sentence of § 31-291 embodies the ‘princi-
pal employer doctrine,’ under which an employer that
hires a contractor or subcontractor, and meets the stat-
utory definition of a ‘principal employer,’ is liable to
pay workers’ compensation benefits to the injured
employees of those contractors or subcontractors. . . .
Furthermore, if the principal employer actually pays
those benefits, according to the second sentence of
§ 31-291, it enjoys immunity from further claims by the
injured employees brought under [General Statutes]
§ 31-293.’’ (Citation omitted; footnote omitted.) Id., 303–
304. ‘‘The principal employer provision has been part
of the act since its enactment in 1913.’’3 Id., 307. ‘‘We
have previously stated that the purpose of the principal
employer provision in § 31-291 is to afford full protec-
tion to work[ers], by preventing the possibility of
defeating the [act] by hiring irresponsible contractors
or subcontractors to carry on a part of the [principal]
employer’s work.’’ (Internal quotation marks omit-
ted.) Id.
It is well settled that the ‘‘three conditions that must
exist for [an entity] to qualify as a principal employer
are: (1) the relation of principal employer and contrac-
tor must exist in work wholly or in part for the former;
(2) the work must be on or about premises controlled
by the principal employer; [and] (3) the work must be
a part or process in the trade or business of the principal
employer.’’ (Internal quotation marks omitted.) Id., 303
n.13. I agree with the majority that this case turns on
the third element of the test, namely, whether roof
repair was ‘‘a part or process in the trade or business’’
of the city. ‘‘When applied to a public corporation, the
term [business] signifies the conduct of the usual affairs
of the corporation, and such as commonly engage the
attention of its officers.’’ Massolini v. Driscoll, supra,114 Conn. 552; see Mancini v. Bureau of Public Works,
167 Conn. 189, 195–96, 355 A.2d 32 (1974).
The ‘‘leading case’’ from this court expounding on
the third element of the principal employer test is King
v. Palmer, 129 Conn. 636, 30 A.2d 549 (1943). Gedeon
v. First National Supermarkets, Inc., 21 Conn. App.
20, 26 n.2, 571 A.2d 123, cert. denied, 215 Conn. 804, 574
A.2d 220 (1990); see also R. Carter et al., 19 Connecticut
Practice Series: Workers’ Compensation Law (Supp.
2019–2020) § 2.32, pp. 89–90 (describing ‘‘the King test
[as] ubiquitously applied’’ and ‘‘the classic statement
and analysis of the law in Connecticut’’). In King, a
steamfitter, who was employed by an independent com-
pany that had been ‘‘engaged in replacing and recon-
structing the entire heating and steam pressure system
of [a railroad company’s] enginehouse,’’ brought a negli-
gence action to recover for injuries he sustained when
he was struck by a truck operated by the railroad’s
employees. King v. Palmer, supra, 637. In considering
whether the railroad was statutorily immune from liabil-
ity because it was the steamfitter’s principal employer,
the court focused on the ‘‘determinative’’ third element
of the three factor test, observing that it had ‘‘never
attempted to define by a general statement the intent
expressed by the legislature in its use of the words ‘part
or process in the trade or business’ of the principal
employer and [had] in fact in [its] opinions on one or
two occasions suggested that it would be difficult to
do so.’’ Id., 639. Putting aside the ‘‘part’’ portion of the
principal employer statute,4 the court observed that its
past cases had ‘‘in effect . . . held that the words ‘pro-
cess in the trade or business’ included all those opera-
tions [that] entered directly into the successful perfor-
mance of the commercial function of the principal
employer,’’ citing routine window washing of a factory
in Fox v. Fafnir Bearing Co., 107 Conn. 189, 193, 139
A. 778 (1928), ‘‘the placing of the calks in the shoes of
horses by a driver engaged in collecting ashes for a
city [that] had contracted out the performance of that
function’’ in Massolini v. Driscoll, supra, 114 Conn. 546,
‘‘and the removal of rubbish in connection with the
operation of a store’’ in Hoard v. Sears Roebuck & Co.,
122 Conn. 185, 189, 188 A. 269 (1936). King v. Palmer,
supra, 640–41. The court observed that, ‘‘[o]n the other
hand, [when] the work in which the employee is
engaged does not directly enter into the performance
of the commercial function of the claimed principal
employer but only affords facilities for the conduct of
his trade or business, we have held that the work is
not a ‘process’ in that trade or business,’’ citing exam-
ples such as ‘‘the construction of a factory building
. . . and the construction of a partition in a factory
. . . .’’ (Citation omitted.) Id., 641. Distilling these two
lines of cases, the court observed in King that, ‘‘[i]f
the work is of such a character that it ordinarily or
appropriately would be performed by the principal
employer’s own employees in the prosecution of its
business, or as an essential part in the maintenance
thereof, it is a part or process of his work.’’ Id.As the Appellate Court has observed, King ‘‘sets up
the distinction between acts that constitute part or pro-
cess and acts that do not, based on whether the acts
constitute temporary maintenance or major replace-
ment.’’ Gedeon v. First National Supermarkets, Inc.,
supra, 21 Conn. App. 26 n.2. ‘‘It has long been held that
this condition is not limited to the main tasks performed
in the principal employer’s trade or business. Rather,
those tasks [that] are necessary to the routine function-
ing of a business are also included within the scope of
this element . . . .’’ Alpha Crane Service, Inc. v. Capi-
tol Crane Co., 6 Conn. App. 60, 75, 504 A.2d 1376, cert.
denied sub nom. Aparo v. United Technologies Corp.,
199 Conn. 807, 508 A.2d 769 (1986), and cert. denied,
199 Conn. 808, 508 A.2d 769 (1986), and cert. denied
sub nom. Aparo v. United Technologies Corp., 199
Conn. 808, 508 A.2d 769 (1986). Leading commentators
observe that ‘‘[t]he shades of gray . . . are numerous
in this area,’’ but, ‘‘with a surprising degree of harmony,
the cases . . . agree [on] the general rule of thumb
that the statute covers all situations in which work is
accomplished [that] this employer, or employers in a
similar business, would ordinarily do through employ-
ees.’’ 19 R. Carter et al., supra, § 2.32, p. 89. ‘‘It is the
actual practice of the principal employer on which the
application of the statute turns.’’ Doyle v. Finitsis, 42
Conn. Supp. 168, 171, 608 A.2d 1191 (1992). This deter-
mination ultimately ‘‘is a question of degree and fact.’’
Grenier v. Grenier, 138 Conn. 569, 571, 87 A.2d 148(1952); see Crisanti v. Cremo Brewing Co., 136 Conn.
529, 532, 72 A.2d 655 (1950).
Applying this analysis, the court concluded in King
that the steamfitter was ‘‘not engaged in [a] part or
process’’ in the railroad’s business, and, therefore, his
negligence claims were not barred because the railroad
was not his principal employer. King v. Palmer, supra,129 Conn. 642. The court emphasized that the railroad
‘‘had two employees who were engaged in fixing leaks
in the pipes and were continuously busy at that work.
This was work that would ordinarily and appropriately
be performed by the principal employers in the prosecu-
tion of their business and is essential to maintaining it.
However, the work out of which the [steamfitter’s]
injury arose was a major job of replacement of pipes
and not one of their temporary maintenance, so that
the principal employers’ business might proceed with-
out interruption.’’ (Emphasis added.) Id., 641–42; see
id., 638 (noting that steamfitter’s work was exclusively
supervised by plumbing independent contractor, which
had provided all tools he needed for reconstruction
job); see also Grenier v. Grenier, supra, 138 Conn.
570–72 (automobile sales and repair business was not
principal employer of roofer who was employed by
uninsured roofing company and injured while installing
weatherproofing material on wooden roof because roof-
ing work ‘‘was not of such a character that it would
ordinarily be performed by the [automobile company’s]
employees’’); Crisanti v. Cremo Brewing Co., supra,
136 Conn. 532–33 (beverage manufacturer was principal
employer of independent trucking company employee
who was injured while loading truck for New York
deliveries because he was ‘‘actually’’ working ‘‘in collab-
oration’’ with beverage manufacturer’s employees dur-
ing loading, and beverage manufacturer ‘‘maintained a
fleet of trucks operated by its own employees to deliver
to its [Connecticut and Massachusetts] customers 80
[percent] of its merchandise,’’ rendering it ‘‘just as much
a business function of the defendant to deliver its prod-
uct by one method as by the other’’); Zimmerman v.
MacDermid, Inc., 130 Conn. 385, 388–89, 34 A.2d 698(1943) (moving ‘‘drums of chemicals from the unloading
platform to the place in the factory designated by [the
chemical plant’s] employee was work [that] would ordi-
narily be performed by the employees of the [chemical
plant],’’ rendering chemical plant principal employer
of injured delivery company employee); Alpha Crane
Service, Inc. v. Capitol Crane Co., supra, 6 Conn. App.
76 (The crane operator was a statutory employee of the
mechanical and electrical engineering company, which
had been engaged to dismantle ductwork at a labora-
tory, because ‘‘[a] necessary and expected part of that
business was that the dismantled ducts had to be low-
ered to the ground. Thus, the use of cranes such as
those operated by [the independent contractors] was
a part or process in [the engineering firm’s] trade or
business.’’); Doyle v. Finitsis, supra, 42 Conn. Supp.
171 (‘‘[T]he actual practice of the bakery was to bake
pastries and to sell them. The business of supplying the
bakery with flour was . . . not that of its employees
but of nonemployees, such as [the injured delivery
employee]. The work that [the supplier and its
employee] were performing was not [a] part or process
of the [bakers’] trade or business.’’).
Turning to our principal employer cases involving
municipalities, I note that the leading case is Massolini
v. Driscoll, supra, 114 Conn. 546, in which this court
held that the city of Hartford was the principal employer
of a driver who was employed by an independent con-
tractor that supplied a team of horses to pull a wagon
owned by the city and used by city employees to collect
refuse. Id., 548–49, 553; see also 19 R. Carter et al.,
supra, § 2.32, p. 91 (describing Massolini as ‘‘[t]he semi-
nal case’’ for principal employer liability for municipali-
ties). The driver was killed while applying calks to the
shoes of the horses to keep them from slipping, a horse
care task that the court described as ‘‘not part of [Hart-
ford’s] business’’ and ‘‘solely in the interest of [the con-
tractor] and of no benefit to’’ Hartford. Massolini v.
Driscoll, supra, 549. Nevertheless, the court held that
Hartford was liable to pay workers’ compensation bene-
fits as a principal employer because ‘‘the disposal of
ashes and rubbish is a ‘business,’ in which . . . Hart-
ford was engaged at the time of [the] accident’’ insofar
as the driver had ‘‘been injured on the premises of
[Hartford], while employed by a contractor hired by it,
and while engaged in doing an act incidental to and in
furtherance of the operations involved in the business
of’’ Hartford. Id., 553. The court emphasized that picking
up refuse was part of the exercise of Hartford’s ‘‘police
powers.’’ Id., 552–53. I, however, find most significant
the fact that the driver in Massolini was working along-
side Hartford’s own employees at the time of his fatal
injury. Id., 548–49.
Similarly illustrative is this court’s more recent deci-
sion in Mancini v. Bureau of Public Works, supra, 167
Conn. 189, which involved the Metropolitan District, a
public corporation authorized by its statutory ‘‘charter
. . . to build, create, maintain, alter or repair sewers
throughout its district.’’ Id., 191. In Mancini, the plain-
tiffs were employees of a construction company that
the Metropolitan District had hired to install a sewer
line in the town of Rocky Hill; they were injured in an
explosion that occurred during the excavation process
when one of the plaintiffs struck a dynamite blasting
cap with his jackhammer. Id., 191–92. The court held
that the Metropolitan District was the plaintiffs’ princi-
pal employer, thus barring their negligence claims
under § 31-291. Id., 192–93. Specifically, the court held
that the trial court had properly instructed the jury with
respect to the third element of the test because the
fact that the Metropolitan District had used its own
employees in addition to private contractors to dig sew-
ers, along with the powers set forth in its charter, ren-
dered the construction of sewers a part or process in
its business. Id., 196. The court rejected the plaintiffs’
reliance on the absence of evidence that the Metropoli-
tan District ‘‘had engaged in blasting when laying sewer
lines,’’ rejecting this narrow construction of the act
because, ‘‘under the terms of the statute, the actual
cause of the injury is irrelevant to its applicability. Con-
sequently, the absence of any showing that the [Metro-
politan District] engaged in blasting is not fatal to the
defense.’’ Id., 195–96. Taking a broad approach to the
King analysis, the court emphasized that ‘‘the ‘work’
to be performed by [the construction company] for the
[Metropolitan District] can be characterized as laying
sewer lines,’’ especially ‘‘[g]iven that the [Metropolitan
District’s] charter authorized such construction, and
that the plaintiffs’ own claims of proof contain the state-
ment that some of the sewers laid on behalf of the
[Metropolitan District] were laid by [its own] employees
. . . .’’ Id., 196.
Although I agree with the majority that the city’s
statutory authorization to engage in the construction
and maintenance of municipal buildings is a relevant
factor in determining whether roofing was a part or
process in its business, the sheer breadth of municipal
powers under § 7-148 (c), which encompasses nearly
every conceivable aspect of running a city,5 means that
excessive reliance on that factor would render a munici-
pality the workers’ compensation guarantor of virtually
every employee of an independent contractor engaged
by the city.6 Thus, I afford greater importance to the
city’s ‘‘actual practice’’; Doyle v. Finitsis, supra, 42
Conn. Supp. 171; with respect to its execution of its
statutory powers and responsibilities, which renders
the present case distinguishable from Mancini and
Massolini.7
Specifically, the city’s broad menu of powers under
§ 7-148 (c) is distinct from the sewer line construction
and maintenance that were the raisons d’être of the
Metropolitan District in Mancini, which the Metropoli-
tan District accomplished in part with its own employ-
ees. Mancini v. Bureau of Public Works, supra, 167
Conn. 196. In contrast to the driver in Massolini, who
drove a team of horses hitched to a city owned wagon
that was staffed by city employees doing the routine
task of refuse collection; Massolini v. Driscoll, supra,114 Conn. 548–49; the record in the present case does
not reveal any evidence that the plaintiff was working
alongside any city employees on the transfer station
roof construction project or that the city used its own
employees for roofing tasks at any time. John F. Cottell,
Jr., the city’s Deputy Director of Public Facilities8 who
was the sole witness at the formal hearing before the
Workers’ Compensation Commissioner, testified that,
although the city employed other tradespeople, such as
carpenters, electricians, and plumbers, the Bridgeport
Department of Public Facilities did not employ any
roofers because the lack of regular roofing work ren-
dered it more financially advantageous to hire an out-
side contractor when necessary.9 To Cottell’s knowl-
edge, the city had never employed a roofer and lacked
the funds to do so. Moreover, the record demonstrates
that the city engaged in only the most fleeting supervi-
sion of the plaintiff’s work on this project, with Cottell
testifying that he stopped by the roofing project ‘‘at
least once’’ but that he did not recall seeing the plaintiff
personally.
Put differently, there is no evidence that roofing was
a routine, nonspecialized maintenance task integral to
the day-to-day operations of the Department of Public
Facilities.10 Thus, I view this case as more akin to
Gaspard v. Orleans Parish School Board, 688 So. 2d
1298, 1302–1303 (La. App. 1997), in which the court
held that a school board was not the principal employer
of a plumber, an employee of an independent contractor
who was injured while replacing a school’s plumbing
system. In that case, the court observed that the school
board ‘‘contracts out specialized work such as a
replumbing job,’’ which ‘‘was not routine work for the
[school board, which] did not customarily use [its] own
employees for such jobs.’’ Id., 1303. But cf. Sandhu v.
State, Docket No. 1 CA-CV16-0095, 2017 WL 1278982,
*3 (Ariz. App. April 6, 2017) (state department of correc-
tion was principal employer of dentist employed by
independent contractor because, inter alia, it retained
control over independent contractor’s employees by
imposing departmental ‘‘policies and procedures while
providing health and dental services,’’ and medical care
was ‘‘a ‘part or process’ ’’ in department’s business
rather than ‘‘ancillary’’ function because ‘‘[t]he provi-
sion of medical and dental services to inmates is a
routine part of [the department’s] business, because
Arizona law’’ imposes nondelegable duty on department
to provide proper care); Broward County v. Rodrigues,
686 So. 2d 774, 775 (Fla. App.) (maintenance employee
of independent contractor injured while cleaning tank
at county owned and operated wastewater treatment
plant was statutory employee of county because clean-
ing of tank was necessary to operation of plant, and
county passed on all operating costs pursuant to con-
tract with municipalities), cause dismissed, 690 So. 2d
1300 (Fla. 1997); Joseph v. Parish of St. John the Bap-
tist, 772 So. 2d 737, 738–39 (La. App. 2000) (employee
of independent contractor trash hauler was statutory
employee of parish, which was legally required to pro-
vide garbage collection, nature of work was routine
and nonspecialized, parish had personnel capable of
performing work, although it did not have equipment
at that time, and parish collected refuse removal fees
from its residents’’); Clark v. Nevada Industrial Com-
mission, 99 Nev. 729, 730, 669 P.2d 730 (1983) (county
was principal employer of temporary poll workers
because ‘‘the employment of election workers is clearly
within the scope of the county’s business of providing
governmental services’’).
Given these authorities and the record in this case,
which indicated that the city had never employed its
own roofers at any relevant time and contained no
evidence that city employees worked alongside the
plaintiff or other employees of private contractors on
the transfer station roof project, I conclude that the
city was not in the business of roofing with respect to
its public facilities.11 Accordingly, the city was not the
principal employer liable to pay workers’ compensation
benefits to the plaintiff under § 31-291.
Because I would reverse the judgment of the Appel-
late Court, I respectfully dissent.
1
General Statutes § 31-291 provides: ‘‘When any principal employer pro-
cures any work to be done wholly or in part for him by a contractor, or
through him by a subcontractor, and the work so procured to be done is a
part or process in the trade or business of such principal employer, and is
performed in, on or about premises under his control, such principal
employer shall be liable to pay all compensation under this chapter to the
same extent as if the work were done without the intervention of such
contractor or subcontractor. The provisions of this section shall not extend
immunity to any principal employer from a civil action brought by an injured
employee or his dependent under the provisions of section 31-293 to recover
damages resulting from personal injury or wrongful death occurring on or
after May 28, 1988, unless such principal employer has paid compensation
benefits under this chapter to such injured employee or his dependent for
the injury or death which is the subject of the action.’’
2
The defendants in the matter are (1) the city, (2) the city’s insurer, PMA
Insurance Company (PMA), (3) the city’s contractor, All Roofs by Dominic,
and (4) the subcontractor and the plaintiff’s employer, Howard Adams d/b/a
Howie’s Roofing. Once the Workers’ Compensation Commissioner deter-
mined that the plaintiff’s employer was uninsured, the Second Injury Fund
(fund) became obligated to pay the plaintiff’s compensable claim and partici-
pated in this case. See General Statutes § 31-355 (h). Only the fund, the city,
and PMA are participating in this appeal. Like the majority, I refer to the
fund by name and to the city and PMA collectively as the defendants.
3
‘‘Prior to 1988, however, § 31-291 did not require the contractor to actually
pay workers’ compensation benefits to the injured employees in order to
obtain immunity. . . . So long as the employer was a principal employer—
and, thus, was liable to pay the benefits—the employer enjoyed immunity
from civil actions regardless of whether it actually paid those benefits.’’
(Citation omitted; emphasis in original.) Gonzalez v. O & G Industries, Inc.,
supra, 322 Conn. 307. The benefits provided by the fund and certificates of
insurance provided by subcontractors created an ‘‘inequitable situation’’
because the principal employer received immunity, even though it was
‘‘rarely’’ required to pay workers’ compensation benefits. (Internal quotation
marks omitted.) Id. Accordingly, in 1988, ‘‘the legislature amended § 31-
291 to require principal employers to actually pay workers’ compensation
benefits in order to obtain the statutory immunity from civil actions.’’ Id.,
307–308. ‘‘[T]he purpose and effect of this amendment was to limit the
implied common-law immunity of the principal employer to the situation in
which it had in fact paid the workers’ compensation benefits that presumably
were the basis of its immunity. Implicit in this amendment, moreover, was
the notion that, except in the isolated cases of its application, there would
be no such immunity.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 308; see also Sgueglia v. Milne Construction Co., 212 Conn.
427, 434–35, 562 A.2d 505 (1989) (discussing principal employer’s obligation
under General Statutes § 31-355 to reimburse fund for benefits paid).
4
The court stated that it was not concerned with the ‘‘part’’ language of
the statute, deeming it ‘‘intended to meet situations, for example, [in which]
a manufacturer of a general line of hats contracts out the production and
distribution of hats of a particular type or [when] a transportation company
contracts out the maintenance and operation of one of its branches. We might
conceivably have construed the words ‘process in the trade or business’ as
restricted to those situations [in which] a part of the process [that] entered
directly into the production of goods by a manufacturer or the performance
of the business function of a commercial enterprise was contracted out, as,
for example, [when] a manufacturer of optical goods contracted out the
rough grinding of the lenses [that] went into the instruments it produced,
itself doing the polishing and finishing of the lenses, or [when] a mercantile
company contracted out the maintenance and operation of a system for
delivery of its goods.’’ King v. Palmer, supra, 129 Conn. 640.
5
For example, subdivision (4) of § 7-148 (c) provides that a municipality
may: ‘‘(A) Provide for police protection, regulate and prescribe the duties
of the persons providing police protection with respect to criminal matters
within the limits of the municipality and maintain and regulate a suitable
place of detention within the limits of the municipality for the safekeeping
of all persons arrested and awaiting trial and do all other things necessary
or desirable for the policing of the municipality;
‘‘(B) Provide for fire protection, organize, maintain and regulate the per-
sons providing fire protection, provide the necessary apparatus for extin-
guishing fires and do all other things necessary or desirable for the protection
of the municipality from fire;
‘‘(C) Provide for entertainment, amusements, concerts, celebrations and
cultural activities, including the direct or indirect purchase, ownership and
operation of the assets of one or more sports franchises;
‘‘(D) Provide for ambulance service by the municipality or any person,
firm or corporation;
‘‘(E) Provide for the employment of nurses;
‘‘(F) Provide for lighting the streets, highways and other public places of
the municipality and for the care and preservation of public lamps, lamp
posts and fixtures;
‘‘(G) Provide for the furnishing of water, by contract or otherwise;
‘‘(H) Provide for or regulate the collection and disposal of garbage, trash,
rubbish, waste material and ashes by contract or otherwise, including prohib-
iting the throwing or placing of such materials on the highways; [and]
‘‘(I) Provide for the financing, construction, rehabilitation, repair, improve-
ment or subsidization of housing for low and moderate income persons and
families . . . .’’
With respect to public works, sewers, and highways, subdivision (6) of
§ 7-148 (c) provides in relevant part that a municipality may: ‘‘(A) . . . (i)
Establish, lay out, construct, reconstruct, alter, maintain, repair, control and
operate cemeteries, public burial grounds, hospitals, clinics, institutions for
children and aged, infirm and chronically ill persons, bus terminals and
airports and their accessories, docks, wharves, school houses, libraries,
parks, playgrounds, playfields, fieldhouses, baths, bathhouses, swimming
pools, gymnasiums, comfort stations, recreation places, public beaches,
beach facilities, public gardens, markets, garbage and refuse disposal facili-
ties, parking lots and other off-street parking facilities, and any and all
buildings or facilities necessary or convenient for carrying on the govern-
ment of the municipality;
‘‘(ii) Create, provide for, construct, regulate and maintain all things in the
nature of public works and improvements;
‘‘(iii) Enter into or upon any land for the purpose of making necessary
surveys or mapping in connection with any public improvement, and take
by eminent domain any lands, rights, easements, privileges, franchises or
structures which are necessary for the purpose of establishing, constructing
or maintaining any public work, or for any municipal purpose, in the manner
prescribed by the general statutes;
‘‘(iv) Regulate and protect from injury or defacement all public buildings,
public monuments, trees and ornaments in public places and other public
property in the municipality;
‘‘(v) Provide for the planting, rearing and preserving of shade and ornamen-
tal trees on the streets and public grounds;
‘‘(vi) Provide for improvement of waterfronts by a board, commission or
otherwise;
‘‘(B) . . . (i) Lay out, construct, reconstruct, repair, maintain, operate,
alter, extend and discontinue sewer and drainage systems and sewage dis-
posal plants . . . .
***
‘‘(C) . . . (i) Lay out, construct, reconstruct, alter, maintain, repair, con-
trol, operate, and assign numbers to streets, alleys, highways, boulevards,
bridges, underpasses, sidewalks, curbs, gutters, public walks and parkways;
‘‘(ii) Keep open and safe for public use and travel and free from encroach-
ment or obstruction the streets, sidewalks and public places in the municipal-
ity . . . .
***
‘‘(v) Require owners or occupants of land adjacent to any sidewalk or
public work to remove snow, ice, sleet, debris or any other obstruction
therefrom, provide penalties upon their failure to do so, and cause such
snow, ice, sleet, debris or other obstruction to be removed and make the
cost of such removal a lien on such property . . . .’’
6
My research reveals that Virginia case law, some of which is cited with
approval by the majority, strictly distinguishes governmental entities and
public utilities from private sector employers for purposes of the business
aspect of its ‘‘statutory employer’’ test, which is akin to our principal
employer status. In this context, the Virginia Supreme Court has rejected
a test akin to that in King v. Palmer, supra, 129 Conn. 640–41, for private
employers, which considered whether the work at issue would ‘‘normally
[be] carried on through . . . employees rather than independent contrac-
tors,’’ describing it as ‘‘not designed for every situation. It works best in
cases involving private businesses because those entities often define their
trade, business, or occupation by their conduct. With regard to such entities,
what they do on a day-to-day basis provides a reasonably reliable indicator
of their trade, business, or occupation.
‘‘Yet, public utilities and governmental entities are of another class. It is
not simply what they do that defines their trade, business, or occupation.
What they are supposed to do is also a determinant. Whereas a private
business entity is essentially self-defining in terms of its trade, business,
or occupation, a public utility has duties, obligations, and responsibilities
imposed [on] it by statute, regulation, or other means.’’ (Emphasis omitted;
internal quotation marks omitted.) Ford v. Richmond, 239 Va. 664, 666–67,
391 S.E.2d 270 (1990), quoting Henderson v. Central Telephone Co. of Vir-
ginia, 233 Va. 377, 383, 355 S.E.2d 596 (1987). The court went on to conclude
in Ford that a contractor’s employee who was injured while repairing a roof
over a reservoir at a municipal waterworks was a statutory employee of
the city of Richmond, which ‘‘was authorized and empowered by legislative
mandate to perform certain public duties including . . . the maintenance
of a public facility. Under the test applicable to governmental entities, the
maintenance work delegated by contract to [the contractor] and performed
by its employee, [Curtis E.] Ford, was part of the trade, business or occupa-
tion of [Richmond]. As an owner performing such work through an indepen-
dent contractor, [Richmond] was Ford’s statutory employer,’’ and workers’
compensation benefits constituted ‘‘Ford’s exclusive rights and remedies
for the injury by accident . . . arising out of and in the course of the
employment . . . .’’ (Citations omitted; internal quotation marks omitted.)
Ford v. Richmond, supra, 669; see Jones v. Commonwealth, 267 Va. 218,
224–25, 591 S.E.2d 72 (2004) (concluding, without analysis of work of univer-
sity’s employees, that independent contractor injured while performing
asbestos abatement at public university was statutory employee of university
because of statute charging its ‘‘Board of Visitors . . . ‘with the care and
preservation of all property belonging to the [u]niversity’ ’’); Roberts v. Alex-
andria, 246 Va. 17, 19–20, 431 S.E.2d 275 (1993) (holding that city of Alexan-
dria was statutory employer of employee of medical services provider that
sheriff had contracted with to provide medical services at city jail because
Alexandria ‘‘clearly is authorized and empowered [by state statute] to pro-
vide medical services to the jail’s inmates’’ and because Alexandria pays
costs of operating jail from its general fund revenues).
I note that the Virginia analysis for determining a statutory employer in
the governmental context has been criticized as ‘‘out of step’’ with other
courts. Best v. Washington Metropolitan Area Transit Authority, 822 F.2d
1198, 1202 (D.C. Cir.1987) (Mikva, J., concurring); see id. (Mikva, J., concur-
ring) (accepting Henderson as binding statement of state law in concluding
that independent contractor’s employee, who was injured when fixing escala-
tor in subway station, was statutory employee of transit authority because
‘‘his employer contracted with a governmental entity [the] broad statutory
mandate [of which] appears to embrace escalator repair’’); see also Hose
v. United States, 604 F. Supp. 2d 147, 151–52 (D.D.C. 2009) (citing federal
cases showing broad application of Virginia law). I agree. With no consider-
ation of a municipality’s actual practices, the Virginia approach renders
municipalities the guarantor of virtually every employee of any contractor
that they engage, particularly given the broad statutory authority of munici-
palities to act in a variety of areas. I am concerned that the primacy that
the majority places on the statutory mandate under § 7-148 (c)—with no
evidence that the city ever used its own employees to engage in roofing
tasks or to perform actual work alongside the contracted roofers—puts
Connecticut on the same path.
7
I respectfully disagree with the majority’s reliance on Pacileo v. Mor-
ganti, Inc., 10 Conn. App. 261, 522 A.2d 841 (1987). In Pacileo, the Appellate
Court concluded that a general contractor was the principal employer of
an ironworker because ‘‘the defendant’s business, as the general contractor,
was to oversee and implement the construction of the city hall library
complex. . . . A necessary and expected part of that construction was the
laying of steel rods for the pouring of concrete. Ironworkers generally lay
steel rods. Since none of the individuals directly employed by [the defendant
was] qualified to perform the job of ironworker . . . the utilization of iron-
workers such as the plaintiff was a part or process of the defendant’s
trade or business.’’ (Internal quotation marks omitted.) Id., 264. A general
construction contractor, who voluntarily undertakes the organization of a
major construction project as a commercial venture, is situated differently
from a municipality that has broad statutory powers in a variety of areas
and makes operational decisions as to the best way to implement those
powers and responsibilities.
8
As the city’s Deputy Director of Public Facilities, Cottell supervised
departmental divisions for roadway maintenance, recycling and sanitation,
the city’s municipal garage, and the city’s Board of Education facilities, and
also worked with other department heads for divisions such as maintenance
and parks and recreation. He oversaw city employees, as well as the hiring
of relevant contractors.
9
Cottell testified that the city would hire outside contractors with respect
to the other trades if necessary based on the size of the job, the amount
of time that the job would require, and other working demands on his
department.
10
I note that the record is silent as to the city’s construction and mainte-
nance practices with respect to its public housing; see General Statutes § 7-
148 (c) (4) (I); and Cottell testified that the Department of Public Facilities
was not responsible for the construction and maintenance of public housing
facilities. Given the importance of a roof to housing, I leave open the possibil-
ity that a city that owns and operates public housing facilities might be akin
to a real estate developer, rendering roofing and related services part of
the business of providing public housing. See Rodriquez v. John Russell
Construction, 16 Kan. App. 2d 269, 274–75, 826 P.2d 515 (1991) (The court
held that the municipality was the ‘‘statutory employer’’ of a privately
employed roofer who was injured while repairing the roof of a public housing
complex because, when a municipality ‘‘becomes involved as a local housing
authority, its trade or business becomes everything inherent to the ownership
and operation of an apartment complex with a large number of tenants.
. . . Roof repair was essential to protect the building and ensure that it
remained habitable.’’); see also Mahaffey v. United States, 785 F. Supp.
148, 149–51 (D. Kan. 1992) (United States Army was principal employer of
independent construction contractor’s laborer because, ‘‘through the Army
Corps of Engineers and the Directorate of Engineering and Housing at Fort
Riley, Kansas, [it was] responsible for designing, constructing, maintaining
and supervising military facilities,’’ rendering ‘‘the construction and mainte-
nance of barracks . . . inherent in and an integral part of [the] United
States Army’s trade or business’’).
11
Although this appeal turns on the third element, namely, whether the
city was in the trade or business of roofing, I briefly address the second
element of the principal employer test, which concerns whether ‘‘the work
must be on or about premises controlled by the principal employer . . . .’’
(Internal quotation marks omitted.) Gonzalez v. O & G Industries, Inc.,
supra, 322 Conn. 303 n.13. I suggest that the historical purpose of the
principal employer doctrine is better accomplished when the focus is on
authority over the conditions of the workplace at issue rather than on
authority over the premises in general, such as that conferred by property
ownership. See Grenier v. Grenier, supra, 138 Conn. 572 (‘‘[t]he special
purpose of [the act] is to protect employees of minor contractors against
the possible irresponsibility of their immediate employers, by making the
principal employer who has general control of the business in hand liable
as if he had directly employed all who work [on] any part of the business
[that] he has undertaken to carry on’’ (emphasis added; internal quotation
marks omitted)); Wilson v. Largay Brewing Co., 125 Conn. 109, 112, 3 A.2d
668 (1939) (‘‘[t]he underlying purpose of the restriction as to the place of
employment in the various acts was obviously to limit liability to those
situations [in which] such conditions might be assumed to be largely
within the control or observation of the principal employer’’ (emphasis
added)). This distinction is most readily apparent in considering a general
contractor relative to its subcontractors, with the other extreme represented
by a homeowner who may, as a matter of law, own or control the premises
but hires individuals for home improvement projects because they do not
have the expertise or tools to engage in this work safely or competently.
This consideration, however, would also likely be reflected in the third
‘‘trade or business’’ element, as well, given its consideration of whether the
principal employer’s own employees are working alongside the contractor’s
employees on the project at issue. See Grenier v. Grenier, supra, 571–72
(criticizing Bello v. Notkins, 101 Conn. 34, 36–38, 124 A. 831 (1924), which
held that homeowner was principal employer of independent contractor
employee who was building house for homeowner’s own use, and suggesting
that decision was driven by fact that homeowner’s ‘‘business . . . was build-
ing houses’’).